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Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations a notice of proposed rulemaking NPRM proposing to exempt records maintained in JUSTICE/OLP002 from certain provisions of the Privacy Act pursuant to 5 U.S.C. 552ak, and inviting public comment on the proposed exemptions. 86 FR 38955. The comment period was open through August 13, 2021, for the SORN and through August 23, 2021, for the NPRM.
The Department received no comments on the proposed rule. After providing the opportunity for public comment, exemptions necessary to protect the ability of OLP to do its judicial nomination functions have been codified in this final rule as proposed in the NPRM.
The exemptions are necessary because certain classified information may be maintained in JUSTICE/OLP002, including but not limited to, records related to a potential nominee that maintained a previous or current position with access to classified information and/or assigned to a national security sensitive position.
Moreover, given the law enforcement information that may be discovered as part of the nomination investigation and/or evaluations, certain investigatory materials for law enforcement purposes may be maintained in this system of records. In addition, investigatory material may also be used in determining suitability, eligibility, or qualification decisions, and such information may require exemption to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Department under an express promise that the identity of the source would be held in confidence. Finally, the Department also utilizes various examination materials to determine individual qualifications for appointment, which if disclosed, could compromise the objectivity or fairness of the Departments examination and vetting process.
Response to Public Comments In its Judicial Nominations Files SORN, published on July 14, 2021, and its Judicial Nominations Files NPRM, published on July 23, 2021, the Department invited public comment.
The comment period for the SORN
closed on August 13, 2021, and the comment period for the NPRM closed on August 23, 2021. The Department received no comments. Because no comments were submitted, and because OLP continues to assert the rationales in support of the exemptions as stated in the NPRM, the Department adopts in this final rule the exemptions and rationales proposed in the NPRM.

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Executive Orders 12866 and 13563
Regulatory Review This regulation has been drafted and reviewed in accordance with Executive Order 12866, Regulatory Planning and Review section 1b, Principles of Regulation, and Executive Order 13563
Improving Regulation and Regulatory Review section 1b, General Principles of Regulation.
The Department of Justice has determined that this rule is not a significant regulatory action under Executive Order 12866, section 3f, and accordingly this rule has not been reviewed by the Office of Information and Regulatory Affairs within the Office of Management and Budget pursuant to Executive Order 12866.
Regulatory Flexibility Act This regulation will only impact Privacy Act-protected records, which are personal and generally do not apply to an individuals entrepreneurial capacity, subject to limited exceptions.
Accordingly, the Chief Privacy and Civil Liberties Officer, in accordance with the Regulatory Flexibility Act 5 U.S.C.
605b, has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities.
Executive Order 13132Federalism This regulation will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
Executive Order 12988Civil Justice Reform This regulation meets the applicable standards set forth in sections 3a and 3b2 of Executive Order 12988 to eliminate drafting errors and ambiguity, minimize litigation, provide a clear legal standard for affected conduct, and promote simplification and burden reduction.
Executive Order 13175Consultation and Coordination With Indian Tribal Governments This regulation will have no implications for Indian Tribal governments. More specifically, it does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal
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Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
Therefore, the consultation requirements of Executive Order 13175
do not apply.
Unfunded Mandates Reform Act of 1995
This regulation will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000, as adjusted for inflation, or more in any one year, and it will not significantly or uniquely affect small governments.
Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
Congressional Review Act This rule is not a major rule as defined by 5 U.S.C. 804 of the Congressional Review Act.
Paperwork Reduction Act This rule imposes no information collection or recordkeeping requirements.
List of Subjects in 28 CFR Part 16
Administrative practices and procedures, Courts, Freedom of information, Privacy Act.
Pursuant to the authority vested in the Attorney General by 5 U.S.C. 552a and delegated to me by Attorney General Order 29402008, the Department of Justice amends 28 CFR part 16 as follows:
PART 16PRODUCTION OR
DISCLOSURE OF MATERIAL OR
INFORMATION
1. The authority citation for part 16
continues to read as follows:

Authority: 5 U.S.C. 301, 552, 552a, 553; 28
U.S.C. 509, 510, 534; 31 U.S.C. 3717.

Subpart EExemption of Records Systems Under the Privacy Act

2. Revise 16.73 to read as follows:

16.73 Exemption of Office of Legal Policy Systems.

a The Judicial Nominations Files JUSTICE/OLP002 system of records is exempt from subsections c3; d;
e1, e4G, H, and I; and f of the Privacy Act, pursuant to 5 U.S.C.
552ak1, k2, k5, and k6. The exemptions in this paragraph a apply only to the extent that information in this system of records is subject to an exemption, pursuant to 5 U.S.C. 552ak.
Where compliance would not appear to
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